Countries Adopt Performance Rights Treaty; May Advance Chinese Copyright Law Reforms

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By Michael Standaert  

BEIJING--140 delegations from more than 50 countries meeting at the Diplomatic Conference on the Protection of Audiovisual Performances held by the World Intellectual Property Organization finalized negotiations on the Beijing Treaty on Audiovisual Performances on June 24, and officially signed the document on June 26.

The landmark treaty marks the first multilateral agreement on copyright adopted by WIPO since 1996. It updates the international legal framework for audiovisual performers to provide rights and protections similar to those already provided for musical performers under the WIPO Performances and Phonograms Treaty. Included among the treaty provisions are articles requiring national treatment for audiovisual performers in other countries, various exclusive rights for audiovisual performers, and safeguards for technological protection measures.

The treaty will come into force after thirty eligible parties have deposited their instruments of ratification or accession with WIPO.

WIPO Chief Praises Pact.

WIPO Director General Francis Gurry told BNA that the adoption of the treaty was a “significant” move to provide “adequate protection” for audiovisual performers and their works, and that it was also a “positive for international rulemaking” on intellectual property because of how little difficulty there was in reaching the final agreement, though it had taken several rounds of negotiation, first starting in 1996, to reach this point.

“Technology is moving so quickly that the legal framework has lagged behind,” Gurry said. “This treaty will help with bringing confidence to other [IP] discussions. A number of delegations have referred to this and hope it will result in inspiring future progress on other [IP] issues.”

Transfer of Rights Resolved.

The main sticking point since discussions started 16 years ago had been international protection over the “transfer of rights" which were finalized in Article 12 of the agreement.

Article 12 leaves it up to national law to form the basis of the performer-producer agreement on the transfer of rights and does not make it mandatory that such an agreement must take place, but does provide significant language about contractual arrangements between performers and producers relating to this and rights to royalties and remuneration.

PTO, Copyright Office Welcome Progress.

Justin Hughes, a senior advisor to Director of the Patent and Trademark Office David J. Kappos, told BNA following the signing that the process had gone smoothly over the past week partly because of a “wonderful spirit that carried over from [WIPO meetings on the treaty] last summer,” and that while there were “some hard negotiations” throughout the process, the “positive spirit” over the past few years of negotiation helped push the process through finally.

For future negotiations, such as possible talks on copyright exemption for the visually impaired and broadcaster rights, the agreement on the treaty meant that “there really is a chance for a new spirit at the WIPO,” Hughes said.

“The Beijing Treaty is an important step forward in protecting the performances of television and film actors throughout the world," Register of Copyrights Maria Pallante said in a June 26 press statement.

Pallante, along with the Copyright Office's senior counsel for policy and international affairs Karyn Temple-Claggett, joined the U.S. delegation to the diplomatic conference, which was led by the PTO's Hughes. The delegation also included Shira Perlmutter, the PTO's administrator for policy and external affairs; d senior officials from the U.S. Department of State, as well as representatives from the Screen Actors Guild and Motion Picture Association of America.

Betty E. King, U.S. ambassador to the United Nations in Geneva, Switzerland, also joined the U.S. delegation.

“There was a renewed atmosphere of cooperation and collaboration among all of the delegations in attendance, and WIPO's Director General Francis Gurry and all of his talented staff should be congratulated,” Pallante said.

Treaty Could Spur Copyright Law Amendments.

In sideline forums on June 22 and 23, delegates and other representatives of the global music and film industry discussed China's recent draft amendments to its Copyright Law, saying they hoped that these latest revisions would mark progress for better protection of performers rights.

Draft amendments to the Copyright Law were made available to public comment for a month starting from March 31 of this year, and mainly focused on a definition of “works,” and added “artworks with a practical application” to the list of works covered by copyright protection.

The draft also includes clarifications as to when a copyrighted work is completed, and it allows for registration and proof of registration, as well as preliminary proof of ownership. Written consent must be provided for transfer or exclusive license of rights. Finally, mediation commissions were proposed to manage copyright disputes at administrative departments.

Yan Xiaohong, deputy director of the General Administration of Press and Publication, said that the government is currently considering revisions to the draft based on comments received, and that it would try to “learn from international practice and expertise” in order to make sure the law is “in line with international practice.”

Frances Moore, CEO of the International Federation of the Phonographic Industry, representing recording industry delegates, said the decision to draft new amendments to the law was a “tremendous step forward,” and that success in Asia had been garnered by governments and courts that has co-opted internet service providers into “helping combat piracy.”

Challenges Remain in China.

Still, even though progress is being made in China with such agreements as the provider Baidu recently creating a partnership with global music industry players, the “biggest challenge,” Moore said, is “competition from other unlicensed distributors,” which makes it difficult for the licensed ones to compete here. Moore also said that a State Council-level working group on Intellectual Property that had been established at the end of 2011 and headed by Vice Premier Wang Qishan was a “welcome” sign, but that industry members were “still waiting to see real developments.”

Michael O'Leary, senior executive vice president of the Motion Picture Association of America, said both U.S. and Chinese filmmakers support the “landmark” agreement that was reached by Chinese Vice President Xi Jinping with U.S. Vice President Joseph Biden during Xi's state visit in February to allow 14 more foreign films into the country's theaters per year because of the creative competition this would bring to both film industries. O'Leary said the MPAA is encouraged by the Copyright Law amendments but that piracy still “poses a significant threat to creativity” and that further “strong enforcement” is needed to “encourage legal choices and drive behavior.”

Wang Ziqiang, director of the legal policy department at the National Copyright Administration, said that the results of the public consultation on the amendments to the law would be published soon and that there will likely be “structural changes” to the Copyright Law because of these amendments, leading to “more protection of rights.”

Wang said that enforcement would also be strengthened, that the damages available for infringement would rise, and that the burden of proof would be reduced. There are still challenges ahead to get the new amendments wider play in Chinese legal and personal society, Wang said. “We need to translate these amendments into laws and regulations that the general society will understand,” he said.

By Michael Standaert  

Treaty and other documents from the conference at

Overview of China's Copyright Law amendments by Hogan Lovells law firm at